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Workers’
Compensation Board
OPINION
ENTERED: March 29, 2018
CLAIM NO. 201391724
PATRICIA BUNKER PETITIONER
VS. APPEAL FROM HON. STEPHANIE
L. KINNEY,
ADMINISTRATIVE LAW JUDGE
WAL-MART and
HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART & REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman.
Patricia
Bunker (“Bunker”) appeals from the March 25, 2016 Opinion, Award and Order
rendered by Hon. Stephanie L. Kinney, Administrative Law Judge (“ALJ”). The ALJ
awarded permanent partial disability (“PPD”) and medical benefits for a
work-related low back injury she sustained on March 4, 2013. Bunker also appeals from the May 19, 2016
Order on petition for reconsideration.
On appeal, Bunker
argues the ALJ erred in limiting her benefits until she qualifies for normal
old-age Social Security retirement benefits in light of Parker v. Webster
County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017).
Because the sole issue on appeal pertains to the applicability of KRS
342.730(4), we will not summarize the medical and lay evidence.
Bunker filed a Form 101
on February 16, 2015, alleging she injured her low back, right buttock, and
right leg on March 4, 2013 while lifting a box of whole chickens. At the time of her injury, Bunker was a deli
worker at Wal-Mart, and was sixty years of age.
In a benefit review conference held October 15, 2015, the parties
identified benefits per KRS 342.730 and unpaid or contested medical expenses as
contested issues. Subsequent to the
submission of evidence, the ALJ rendered an opinion on March 25, 2016. The ALJ awarded PPD benefits based upon a 7%
impairment rating and enhanced by the three multiplier pursuant to KRS
342.730(1)(c)1, “from March 4, 2013 and continuing until Plaintiff qualifies
for normal old-age social security retirement benefits. . . .” The ALJ also awarded medical benefits.
Both parties filed
petitions for reconsideration on April 8, 2016.
Wal-Mart requested the ALJ correct two typographical errors. Bunker requested the ALJ to address travel
expense reimbursement and additional medical treatment recommended by her
treating physician. In an order dated
May 19, 2016, the ALJ granted Walmart’s petition and corrected the
typographical errors. The ALJ denied Bunker’s
request for additional medical treatment but granted the petition for
reimbursement of travel expenses.
Bunker filed a Notice
of Appeal on June 16, 2016 raising the issue of the constitutionality of KRS
342.730(4). The claim was placed into abeyance
until Parker v. Webster County Coal, LLC (Dotiki
Mine), supra, became final.
On appeal, Bunker
argues her PPD benefits should not terminate upon her attainment of normal
retirement age in light of Parker v. Webster County Coal, LLC (Dotiki
Mine), supra. Bunker argues the ALJ should have awarded PPD
benefits for 425 weeks pursuant to the current version of KRS 342.730, with
subsection four simply eliminated.
The Kentucky Supreme Court in Parker v. Webster County Coal,
LLC (Dotiki Mine), supra, held the age limitation in KRS
342.730(4) violates the right to equal protection and is now final. Therefore, the Board must apply Parker v. Webster County Coal, LLC (Dotiki
Mine), supra, to all decisions which have been timely appealed. As noted in the holding in Legislative
Research Com’n v. Fischer, 366 S.W.3d 905 (Ky. 2012), an unconstitutional
statute is null and void from the date of its enactment, and therefore it
practically never existed. The result is
that the unconstitutional statute’s pre-amendment version controls. Mosely v. Commonwealth Dept. of Highways,
489 S.W.2d 511 (Ky. 1972); Commonwealth v. Malco-Memphis Theatres, 169
S.W.2d 596 (Ky. 1943). In this instance,
the 1996 version of KRS 342.730(4), which was an amendment to an existing
provision, was found unconstitutional.
The Court in Parker v. Webster County Coal, LLC
(Dotiki Mine), supra, did not abolish KRS 342.730(4). Since this was an amendment to an existing
statute, the 1994 version is in effect.
Accordingly, that portion of the ALJ’s Opinion,
Award, and Order limiting the award of PPD benefits pursuant to KRS 342.730(4)
is hereby vacated. That said, because
Bunker was not yet 65 years old at the time of her injury, the tier down
provision contained in the previous version of KRS 342.730(4) is
applicable. That version reads as
follows:
If
the injury or last exposure occurs prior to the employee’s sixty-fifth
birthday, any income benefits awarded under KRS 342.750, 342.316, 342.732, or
this section shall be reduced by ten percent (10%) beginning at age sixty-five
(65) and by ten percent (10%) each year thereafter until and including age
seventy (70). Income benefits shall not be reduced beyond the employee’s
seventieth birthday.
Accordingly, we AFFIRM IN PART the March 25, 2016 Opinion, Award and Order and the May 19, 2016 Order on
petition for reconsideration rendered by Hon. Stephanie L. Kinney,
Administrative Law Judge. However, we
VACATE her determination regarding
the limitations set forth in KRS 342.730(4), as enacted in 1996, and we REMAND this claim to the ALJ for entry
of an award in accordance with the views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CRAIG HOUSMAN
PO BOX 1196
PADUCAH, KY 42002
COUNSEL
FOR RESPONDENT:
HON TROY W SKEENS, JR
51 CAVALIER BLVD, STE 260
FLORENCE, KY 41042
ADMINISTRATIVE
LAW JUDGE:
HON STEPHANIE L KINNEY
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
